Partner| Solicitor Advocate (Civil)

A summary of some of the post-Montgomery cases

In November 2018 I gave a talk at the Bond Solon Annual Expert Witness Conference during which I attempted to summarise the impact of the Supreme Court judgment in Montgomery some 3½ years on from the original decision. The research for the talk, and the findings with respect to the impact that the case has had were quite insightful, although perhaps not overly surprising. In a nutshell, there are a number of principles that seem to have been elucidated by the Courts as they have grappled with the judgment and put it into practice.

The way I remember the principles from Montgomery is by a mnemonic and the lecture I presented followed this, namely IMPACT:

Informed consent

Materiality of risk

Patient characteristics

Alternative reasonable treatments

Causation

Therapeutic exception

I shall briefly look at each in turn and some of the more important cases.

Informed consent

Montgomery is, of course, about informed consent: warning of risks, advising of reasonable alternative treatments and obtaining valid consent. A good example of its application is the case of Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62 (13 February 2017), which was an obstetric case concerning the failure to notice antenatal abnormalities on ultrasound scanning and carry out further scans, which would have resulted in induction, earlier delivery and the avoidance of brain injury. The first instance judge applied Bolam and found against the claimant, in that it was reasonable to proceed with labour even following further abnormal scans. This decision was pre-Montgomery; the claimant appealed. The Court of Appeal heard the case post-Montgomery and overturned the judgment, applying Montgomery. The Court concluded that the increased risks of continuing labour in the presence of ultrasound abnormalities should have been discussed with the mother and the option of induction offered, which she would have accepted.

Some post-Montgomery cases have sought to clarify the extent of the application of the Montgomery principles, although the correct interpretation of the subsequent cases has not always been easy to ascertain. For example, in Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058 (QB) (21 April 2015), a case concerning the failure to warn a patient about symptoms and signs of postoperative pulmonary embolism, it appears that the duty to warn of risks was extended to the duty to warn of risks of post-operative complications. In Gallardo v Imperial College Healthcare NHS Trust [2017] EWHC 3147 (QB) (8 December 2017), a case concerning a failure to inform a patient that he had a malignant tumour which required regular follow-up, the court held that patients had the right to be informed of the outcome of any treatment, prognosis, options for follow-up care and treatment, and that the discussion about these matters should take place as soon as a patient could take part fully, should not be delayed, should be clearly recorded and should also be clearly communicated in writing to the patient’s GP. This seems to be quite a step on from the Montgomery duty and would appear to encapsulate a broader “duty to inform”.

Materiality of risk

The duty in Montgomery was to warn of a “material” risk and, although the material is not defined in the judgment, it has both objective and subjective elements to it. The objective element is whether a reasonable patient would have attached significance to the risk. Some cases relatively early following Montgomery grappled with this concept. In A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 (QB) (31 March 2015), a case concerning warning of the risk of a fetal abnormality, the High Court considered that a risk of 1/1,000 was only “theoretical” or “negligible” and not “material”. This case was referred to in Tasmin v Barts Health NHS Trust [2015] EWHC 3135 (QB) (30 October 2015), in which a similar level of risk was considered to be “too low to be material”. Interestingly, in the Spencer case referred to above, the risk of pulmonary embolus was only 1/50,000 (according to the defendant), but its outcome could be so severe that the judge considered that it was material. Finally, Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 (7 June 2018) is a fascinating case involving Chronic Post-Surgical Pain (CPSP) following Total Abdominal Hysterectomy (TAH), which went to the Court of Appeal. One of the facets of the case was that the surgeons did not know of the risk of CPSP post-TAH at the material time and the court concluded that, if a risk was reasonably not known about, it could not be material.

Patient characteristics

The subjective element of materiality in Montgomery concerns individual patient characteristics. The best example of this subjective element is probably Montgomery itself, as the claimant’s mother, in that case, was of short stature and diabetic, so the risk of shoulder dystocia was of particular importance or significance. Another interesting case is Jones v Royal Devon and Exeter NHS Foundation Trust [2015] 3YS07024 (Exeter CC) (22 September 2015), which concerned the right of a claimant to choose their surgeon when a different surgeon had caused the claimant’s Cauda Equina Syndrome. Although for some reason Montgomery was not expressly referred to in the judgment, the sentiment is plain: the patient should have been told a different surgeon would be operating and she had a choice whether to proceed or not. The case of Crossman v St George’s Healthcare NHS Trust [2016] EWHC 2878 (QB) (25 November 2016), whilst not wholly on point, demonstrates how post-Montgomery the court may apply the “subjective” element of Montgomery to determine a case, in this instance concluding that the claimant did not find it easy to express himself and was intimidated such that it was the hospital’s responsibility to communicate with him rather than the other way around.

Alternative treatments

There have been a number of cases regarding the duty to advise of reasonable alternative treatments. Thefaut v Johnston [2017] EWHC 497 (QB) (14 March 2017) is an important neurosurgical spinal case, in which Green J. set out very clearly the need to advise of reasonable alternative treatments and, in particular, the option of not having surgery and of pursuing a conservative course of management. In addition, it was necessary to give “adequate time and space” and a discussion shortly before surgery was not sufficient, even if earlier written information had been provided (a point also identified in the Jones case referred to above). In Hassell v Hillingdon [2018] EWHC 164 (QB) (6 February 2018), another spinal cord injury case, there was also considered to be a failure to inform of the alternative conservative treatment of physiotherapy, an option which the claimant would have wanted to explore. There was an interesting subjective element to this case in that the claimant’s particular life circumstances (of needing to look after her children) meant that conservative treatment was an especially attractive option to her at that point in time. Bayley v George Eliot Hospital NHS Trust [2017] EWHC 3398 (QB) (21 December 2017) is a case concerning the procedure of iliofemoral stenting, in which the court concluded that the only alternative treatments that needed to be informed about are those that are reasonable, not ones that it was reasonable for the clinicians not to know about, which would not work or which were not accepted practice in the UK at the relevant time.

Causation

In relation to factual causation, i.e. what the claimant would have done if properly warned, advised or informed, Webster is a good example of how the court will take into consideration individual patient characteristics. In that case, the claimant’s mother’s clear evidence was that she would have proceeded with induction if properly informed of the ultrasound abnormalities and the court accepted this, fortified by the fact that she had a university degree in nursing. As mentioned earlier, Hassell is another example, with the claimant stating she would have preferred conservative management because of her lifestyle at that time. Diamond v Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB) (23 June 2017) is a hernia mesh repair case, in which, although the claimant’s evidence was that she would have had a primary suture repair if offered, as it was held it should have been, the court further held that, in the face of the mesh repair having very high prospects of success, “it would have been irrational for the claimant to opt for a suture repair; and I find that she is not a person who would act irrationally”. Accordingly, the claimant’s case failed on causation despite her evidence to the contrary. Duce, mentioned above, is another interesting case on causation, both factual and legal. On factual causation, the Court of Appeal considered that the claimant had been urged on several occasions by doctors to consider less invasive alternatives but still elected for surgery, she was willing to proceed despite some serious risks and she also had a long history of symptoms from which she wanted relief, so she would still have chosen surgery when she did in any event. Importantly, on legal causation, the Court of Appeal took the opportunity to deal with the application of the test of causation in Chester v Afshar to Montgomery cases and dismissed it in no uncertain terms. The Court concluded that a claimant still needs to establish “but for” causation, i.e. that but for the breach of duty, the injury would not have occurred, and that Chester is a specific exception to “but for” causation on its own set of facts of deferring surgery which needs to be expressly pleaded and for which evidence must be provided. The appeal Court emphasised that Chester is to be applied very strictly and very narrowly.

Therapeutic exception

There have not been any cases that I could find on point with respect to the therapeutic exception, i.e. if the information to be provided would be seriously detrimental to the patient’s health, and I doubt they will come before the court very often. There are two other exceptions which are probably worth bearing in mind, namely when the patient declines to be informed or warned, and that of necessity, e.g. in an emergency. There has been one case, Connolly v Croydon Health Services NHS Trust [2015] EWHC 1339 (QB) 15 May 2015, in which the claimant asserted that she had withdrawn consent during an angiogram procedure; however, this allegation was rejected by the judge in part on the basis that the procedure had become an emergency and in such a situation it was entirely reasonable for the doctors to continue with the procedure.

The above is a rather whistle-stop tour of some of the more significant principles that can be drawn out of the post-Montgomery case law. It is perhaps becoming a little clearer how Montgomery is being applied by the courts, but it remains likely that its application will continue to be refined for many years to come and that it will remain a fertile ground for litigation, so watch this space…